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The Village of North Haven is a peninsula of land located on Noyac Bay in the Town of Southampton near Sag Harbor. Pursuant to Village Code §163-48(A), site plan review shall be required for “any proposed construction of a single family residence or accessory structure which is on land with a waterfront…” In November of 2012, Jeffrey Friedman submitted an application for site plan review to construct a rock revetment to alleviate erosion on the bluff on his property located at 44 On the Bluff, North Haven. On October 15, 2018, the Planning Board denied the site plan application. Mr. Friedman (hereinafter “Petitioner”) appealed, bringing an Article 78 Proceeding in New York State Supreme Court. Petitioner argued that the Planning Board should have approved its proposed rock revetment because a majority of bluff-front parcels in the Village are protected by similar structures, the property is similarly situated to another property with a rock revetment located at 4 On the Bluff which the Planning Board approved, and Petitioner responded to all of the Planning Board’s concerns and submitted substantial evidence including expert reports evidencing that the rock revetment was warranted.

In its denial, the Planning Board distinguished the rock revetment at 4 On the Bluff because the property is located on the northwest point of the Village which suffers worse storm impacts due to its location and has less protective beach elevations.  Petitioner’s property is located in the center along a “long stretch of unarmored coastal bank and the construction of a rock revetment along this section of coastline would result in erosion at the ends of the revetment which would be difficult to control.” Additionally, the Planning Board found that construction of hard structures, like revetments, reduce the resiliency of the coast and  adversely impact the shoreline resulting in increased erosion.  The Planning Board further found that nearby properties had success in preventing erosion using soft solutions such as vegetation and coir mats.

The Supreme Court, Suffolk County by Vincent J. Martorana, J.S.C., in its decision dated July 11, 2019, reviewed the standard of review in an Article 78 Proceeding as limiting the court review to whether the Planning Board decision was “arbitrary and capricious, or an abuse of discretion and further, whether or not it was rationally made based upon the facts before it.” The Court further noted the broad discretion afforded to Planning Board determinations. Since the Village of North Haven requires site plan approval for the revetment, even though its accessory to a single family residence, the Court relied on New York State Village Law §7-725-a authorizing the Planning Board to consider the impact of the proposed project on adjacent land uses (among others).  The Court’s reliance on New York State Village Law for its site plan standards in determining the authority of the Planning Board’s review in this matter is significant because the Village Code lacks specific standards for coastal structures such as revetments intended to alleviate erosion. Ultimately, the Court denied the Petition “in all respects” finding that the approval of the revetment at 4 On the Bluff was sufficiently distinguished and that “although differing expert opinions as to the necessity and possible deleterious effect of the proposed revetment were presented, ample evidence is contained in the record which supports the Board’s decision.” Petitioner is appealing the Court’s determination to the Appellate Division.

A recent Fourth Department decision upheld a determination by the Town of Westmoreland Zoning Board of Appeals (the “Westmoreland ZBA” or the “Board”) finding that a dog training business is not a “customary home occupation” within the meaning of the local zoning code.

Matter of McFadden v Town of Westmoreland Zoning Bd. presents a strikingly similar issue to that in a case from the Town of East Hampton, discussed earlier this year by Long Island Land Use and Zoning Blog Contributor Anthony S. Guardino.  In the East Hampton case, the Town of East Hampton Zoning Board of Appeals (the “East Hampton ZBA”) determined that a home-based dog-walking and pet-sitting business was a legal “home occupation” under the applicable zoning code.  In so deciding, the East Hampton ZBA found that such use met all of the regulations of the zoning code permitting home occupations, and it rejected the argument that the business would change the character of the neighborhood.

However, what is permitted in one municipality may be prohibited in another.  McFadden effectively illustrates that point.  In McFadden, the Petitioners are the owners of property in the upstate New York Town of Westmoreland (the “Town”).  They sought to lease a portion of their property for use as a dog training business.  The Westmoreland ZBA determined that such use did not meet the definition of a “home occupation” under the Town’s zoning code, and would only be permitted with a use variance.  The Westmoreland ZBA granted the use variance application subject to restrictions, such “that the business could entertain a maximum of six dogs at one time and could not provide for overnight boarding.”  The Petitioners brought an Article 78 proceeding seeking an order annulling the Board’s determination, arguing that no variance was required because the use conformed to existing code.  The Supreme Court denied the Petition, and the Petitioners appealed.

According to the Westmoreland Town Code a “home occupation” is “[a]n occupation or profession which . . . [i]s customarily carried on in a dwelling unit or in a building or other structure accessory to a dwelling unit”, subject to several other requirements and conditions (see Westmoreland Town Code § 180-2 [“Home Occupation”]).  Here, the Petitioners’ stated intention to lease their property for use as a dog training business rather than running the business themselves, undermined their argument in support of a “home occupation.”  Furthermore, the Court distinguished the Petitioners’ proposed commercial use of the property from the “ability to keep certain personal animals on their property as pets or livestock,” which is permitted.  Notably, that distinction is at odds with the position taken by the East Hampton ZBA, which effectively equated the two.

On appeal, the Fourth Department ultimately affirmed the lower court’s order upholding the Board’s determination that a dog training business was not one “customarily carried on in a dwelling unit,” and thus did not meet the applicable definition of “home occupation.”  Therefore, the Board’s requirement and issuance of the use variance and such reasonable restrictions was proper.

The different outcomes in these two cases, interpreting similar language in zoning codes, provide an example of how a particular fact can greatly impact a zoning determination.  It is important to be cognizant of all material facts when exercising property rights.

The Appellate Division, Second Department, recently issued a decision that appears to be a departure from prior precedent and is certain to create confusion with respect to when to commence an Article 78 claim challenging a final State Environmental Quality Review Act (“SEQRA”) determination.  In Stengel v Town of Poughkeepsie Planning Board, 167 AD3d 752 (2nd Dept. 2018), the court held that a challenge to a Negative Declaration under SEQRA issued by a planning board in connection with an application for site plan approval was barred by the applicable statute of limitations because it was not commenced within four months of that determination.  The Second Department’s holding is difficult to reconcile with prior precedent, including the Court of Appeals’ decision in Eadie v. Town Board of the Town of North Greenbush, 7 NY3d 306 (2006), and with its own decision in Patel v. Board of Trustees of Inc. Village of Muttontown, 115 AD3d 862 (2nd Dept. 2014).

It is axiomatic that the time within which to commence an Article 78 proceeding is four-months, unless a shorter time is provided for in the law authorizing the proceeding. See, CPLR 217(1).   However, Article 78 proceedings that challenge certain land use approvals, such as subdivisions, variances, special use permits and site plans, must be commenced within thirty days after the filing of the board’s decision in the office of the municipal clerk.  See, Town Law §§ 267-c(1), 274-a(11), 274-b(9), 282; Village Law §§ 7-712-c(1), 7-725-a(11), 7-725-b(9), 7-740; General City Law §§ 27- a(11), 27-b(9), 38, 81-c(1).  Applying these various statutes, several appellate courts have held that the time to challenge a SEQRA determination associated with a land use application is governed by the statute of limitations applicable to the underlying application. See, Matter of Guido v. Town of Ulster Town Board, 74 AD3d 1536 (3rd Dept. 2010); Matter of Southwest Ogden Neighborhood Assn. v. Town of Ogden Planning Board, 43 AD3d 1374 (4th Dept. 2007).

In Stengel, several residential neighbors were opposed to the construction of a convenience store and gasoline station that was proposed in close proximity to their homes.  After multiple public hearings on the developer’s application for site plan approval with regard to the proposed facility, the Town of Poughkeepsie Planning Board determined that the project would not have a significant adverse environmental impact and adopted a Negative Declaration under SEQRA.  Thereafter, the Town of Poughkeepsie Zoning Board of Appeals granted several variances and a special use permit, and the Planning Board granted conditional site plan approval for the project.  Under Town Law § 274-a(3), the issuance of site plan approval was subject to a 30-day statute of limitations.

The opponents then commenced an Article 78 proceeding challenging the Planning Board’s actions seeking to annul the Negative Declaration and the grant of conditional site plan approval.  The Dutchess County Supreme Court dismissed the petition.

On appeal, the Second Department held that “[t]o the extent that the petition alleges the Planning Board’s noncompliance with SEQRA, the four-month statute of limitations [CPLR 217(1)] applies.”  With respect to the timeliness of Article 78 claims, the Court stated that an action taken by an agency pursuant to SEQRA can be challenged only when such action is final, and then cited the established principle that an agency action is final when the decision-maker arrives at a definitive position on the issue that inflicts an actual, concrete injury.  According to the court, the statute of limitations began to run on February 19, 2015, with the issuance of the Negative Declaration for the project, as this constituted the Planning Board’s final action under SEQRA.  It then concluded that because the petitioners failed to challenge the Negative Declaration within four months of that date, their claims were time-barred.  This decision was apparently made without giving any consideration to the fact that the perceived injury from the Negative Declaration could have been prevented, ameliorated or rendered moot by the Planning Board’s subsequent decision on the site plan application, and without any discussion as to whether the shorter statute of limitations applicable to the site plan approval affected the timeliness of the SEQRA claims.

Although the court in Stengel cited its prior decision in Patel, it appears not to have followed that decision.  In Patel, the Second Department held that the adoption of a SEQRA Findings Statement by a Village Board of Trustees did not inflict a concrete injury because the Board had not yet issued its final determinations with respect to the underlying applications for a special use permit and site plan approval.  Citing several Court of Appeals decisions, the court explained that an agency’s action is not definitive and the injury is not actual or concrete if the injury purportedly inflicted by the agency could be prevented, significantly ameliorated, or rendered moot by further administrative action or by steps available to the complaining party.  The Patel court concluded that the issuance of the Findings Statement standing alone did not inflict injury in the absence of an actual determination on the applications for a special use permit and site plan approval.  It then dismissed the challenge on the ground that the matter was not ripe for adjudication.

While the limitations periods for Article 78 proceedings challenging a SEQRA determination once appeared to be fairly clear, the Stengel decision has raised an issue as to when the statute of limitations begins to run.  Moreover, because that case involved a challenge to a SEQRA determination associated with a site plan approval that is subject to a thirty-day statute of limitations, the court’s holding that the petitioners’ SEQRA claim is subject to CPLR 217(1)’s four-month statute of limitations conflicts with the decisions from the Appellate Divisions of the Third and Fourth Departments.

On September 5, 2019, the Court of Appeals denied the petitioners’ motion for leave to appeal to the Court of Appeals.  As a result, the current law, at least in the Second Department, is that the statute of limitations to challenge a SEQRA determination that concludes the environmental review process – i.e., a Negative Declaration or Findings Statement – is four months, which runs from the date upon which the final determination was adopted, regardless of whether the SEQRA review was associated with a land use application having a shorter statute of limitations.

Accordingly, practitioners who represent persons aggrieved by a final SEQRA determination no longer have the luxury of waiting until the underlying land use application is decided to assert a SEQRA claim.  Instead, they must now pay closer attention to a board’s SEQRA actions in connection with an application and, depending on the timing of the final SEQRA determination, may have to commence multiple Article 78 challenges in connection with a single application or risk having their SEQRA claims dismissed as time-barred.

In July, the Appellate Division, Third Department issued a decision that dealt with lake bottoms and adverse possession. In LS Marina, LLC v ACME of Saranac, LLC, the appellate court found in favor of the marina operator and granted it summary judgment on its adverse possession claim. Here are the facts and analysis that led to that decision.

In 2014, LS Marina purchased the only publicly accessible marina on Lower Saranac Lake. The marina has been in continual use since 1924. Over the ensuing years, the marina’s business expanded as did its footprint. Between 1924 and the early 1970s, the marina owner purchased several additional parcels that were adjacent to its original site and built docks and covered boat slips. In the early 1970s, that owner installed swing moorings in the bay in front of the marina, which moorings have been used each boating season since then.

At the time of LS Marina’s 2014 purchase, the marina encompassed 17 acres. LS Marina believed its purchase included 6 rental cabins, a showroom, garage, two residential homes, the covered boats slips, boat docks, moorings and the underwater property rights. However, during the pendency of its applications to expand the marina, submitted to the Town of Harrietstown Planning Board, the Town Zoning Board of Appeals, and the Adirondack Park Agency (APA), LS Marina discovered that title to the underwater lake bottom under its mooring field and 154-foot floating dock was held by the estate of Donald Moreau. In 2016, LS Marina contacted the Moreau estate representative about that underwater land.

In January 2017, ACME of Saranac, LLC (ACME) was formed by persons opposed to the expansion. One week later, ACME purchased the lake bottom from the Moreau estate for $50,000.00 via a quick claim deed. The APA informed LS Marina that a court would need to decide who held title to the lake bottom before it would continue processing the expansion application.

In June 2017, LS Marina sued, seeking a declaratory judgment that it possessed title to the underwater land. Shortly after ACME filed its answer to the complaint, LS Marina submitted a motion for summary judgment that was opposed by ACME. The trial court ruled that there were questions of fact about (1) whether LS Marina’s adverse possession claim was hostile and under claim of right; (2) whether it was actual, (3) whether it was open and notorious, (4) whether it was exclusive, and (5) whether it was continuous for the requisite time period.

The Appellate Division reversed and determined that LS Marina had made out a prima facie case of adverse possession. As to the first factor, LS Marina submitted affidavits of its predecessors-in-interest that showed the moorings were installed between the 1970s and 2005. Six moorings were installed in the early 1970s and their locations were selected to create the outer boundary perimeter of the mooring field. By 2005, a total of 20 active moorings had been installed and 16 or 17 were located in the disputed area. The moorings were rented out each boating season (April to October) and their use and access was limited to those who paid the rental fee. The boundary of the claimed area was readily discernable and visible by the mooring balls attached to each mooring anchor. The presence of moored boats made the boundary even made apparent. The affidavits also noted that the predecessor owner had never asked for or received permission to install the moorings because he believed he owned that lake bottom. Also, the submitted affidavit noted that between the 1970s and 2015, no one challenged that ownership interest. The appellate court found this use to be consistent with what owners would use such property for and was sufficiently open and notorious and continuous to put the record owner on notice of an adverse possession claim.

The appellate court rejected ACME’s claim that it raised any triable issue of fact. The Court noted that the seasonal nature of the marina business does not preclude a finding of adverse possession. The Court also found that the installation, seasonal use and maintenance of the mooring area was not sporadic. Rather, these activities persisted each and every boating season. Further, ACME’s assertion that a public right-of-way to traverse the water above the disputed lake bottom area defeated the adverse possession claim was rejected by the Court, which noted that the use of the moorings and floating dock was for the exclusive use of boaters paying the rental fee to the marina owner.

The Court also examined whether LS Marina’s attempt to purchase title to the lake bottom from the Moreau estate in 2016 defeated its adverse possession claim and determined it did not. The appellate court noted that the evidence established that title to the disputed area had passed to LS Marina’s predecessor-in-interest by adverse possession in the 1980s. Therefore, the attempted transaction in 2016 was not relevant, according to the Court.

Since the adverse possession was not based upon a written instrument, the appellate court remanded the matter back to the trial court to determine the specific description of the adversely possessed land.

Earlier this month, a challenge to the Town of Shelter Island (“Shelter Island”) short term rental law ordinance enacted in April 2017, amended May 2019 (“STRL”), came to an end – for now. Several years ago, the Shelter Island Town Board enacted its STRL to (i) impose licensing and advertising requirements for certain vacation rentals, (ii) prohibit certain vacation rentals from being rented more than once in any fourteen-day period, (iii) provide civil penalties for violations, and (iv) empower the Town Board to implement the law. Six plaintiffs in Weisenberg v. Town Bd. of Shelter Is., Docket No. 17-cv-04845 (EDNY 2017), commenced an action in federal court to annul the STRL.

The plaintiffs set forth a number of causes of action, including violations of the federal Fair Housing Act (“FHA”), N.Y. Town Law § 261, N.Y. Human Rights Law (“NYHRL”), the First, Fourth and Fourteenth Amendments to the U.S. Constitution, and Article I §§ 11 and 12 of the N.Y. Constitution. Shelter Island moved to dismiss all causes of action, except for several plaintiffs’ claims under the First Amendment. After addressing standing issues, the Court turned to the merits.

FHA Claims Dismissed

The Court dismissed the FHA claims. The FHA prohibits discrimination in renting a “dwelling” on the basis of familial status. While the statute defines “dwelling” as any building occupied as a “residence,” it does not define the latter term. The Court noted that other Circuits have utilized the plain meaning of “residence,” which encompasses a sense of home – as opposed to a temporary destination. District Courts within the Second Circuit have construed “residence” to mean a place intended for living, rather than visiting.

The Court in Weisenberg  agreed with this interpretation and held that the FHA offered plaintiffs no protection. The STRL regulates vacation-rental properties, which excludes by definition properties rented for more than two weeks at a time. The Court also noted that plaintiffs did not allege their rentals were intended for use as residences by renters. Thus, their properties are not dwellings subject to the FHA.

N.Y. Town Law § 261 Claims Dismissed

The Court dismissed plaintiffs’ claims that the STRL violates N.Y. Town Law § 261. Section 261 provides towns with the power to enact and enforce zoning regulations; it is a power to regulate the use of land and cannot be aimed at the user of land. Here, the Court found the STRL’s fourteen-day minimum rental requirement expressly regulates the use of the land; whether it drew the line at fourteen days, thirty days or 180 days, it regulated rentals based upon duration – not the identity of owners or renters. The Court also noted that the STRL’s distinction between owner-occupied and non-owner-occupied properties was similar to other restrictions on rental permits for non-resident homeowners, which New York Courts routinely uphold.

NYHRL Claims Dismissed

The Court dismissed the plaintiffs’ NYHRL claims. The NYHRL is codified within N.Y. Executive Law Section 296, which prohibits discrimination. Subsection 2-a protects publicly-assisted housing accommodations and subsection 5(a) prohibits discrimination on the basis of familial status. With respect to subsection 2-a, the plaintiffs conceded they could not prevail, and effectively sought permission to amend and replead their claim under subsection 5(a). Permission to amend a complaint, however, will be denied if the new claim is futile.

With respect to subsection 5(a), the plaintiffs argued that Shelter Island’s STRL had a disparate impact on families with children and women who comprise a class of prospective renters. However, the Court held the plaintiffs’ allegations were insufficient to state a claim. They alleged that short term renters are typically families with working parents whose jobs do not offer vacation time or enough income to take vacations of two weeks or more. While this might raise an inference of disparate impact, it does not allege that the STRL affects renters differently based on whether they have children.

Equal Protection Claims Dismissed

The Court dismissed the plaintiffs’ equal protection claim. The plaintiffs did not argue they belonged to a protected class, but instead claimed they comprised a class of one. Class-of-one claims require (i) a showing of an extremely high degree of similarity between two groups, (ii) that no rational person could regard the respective groups’ circumstances different enough to justify differential treatment on the basis of a legitimate government policy, and (iii) the similarity and differential treatment sufficiently shows the defendants did not act by mistake. Here, the plaintiffs failed to identify extremely similar persons for comparison.

Substantive Due Process Claims Dismissed

The Court dismissed the plaintiffs’ substantive due process claims. The substantive component of the Fourteenth Amendment protects against certain government actions regardless of procedural fairness. To assert such a claim in this context, a party must first establish a valid property interest within the Fourteenth Amendment’s purview. The plaintiffs argued that the STRL deprived them of their fundamental property right to rent their homes, which formed part of the “bundle of rights” of land ownership. New York zoning law, however, accounts for the concept that property owners necessarily expect their property use to be restricted from time-to-time by various measures enacted in the legitimate exercise of police powers.

The Court noted that New York landowners do not possess vested rights in zoning classifications, absent substantial expenditures in reliance upon zoning status or municipal approvals. This principle applies equally to broad-based zoning restrictions on temporary rentals. The plaintiffs failed to adequately show they possessed vested rights in the unlicensed renting of their homes for periods of less than fourteen days.

Fourth Amendment Claim Survived

The Court addressed the plaintiffs’ privacy claims brought under the Fourth Amendment and Article I § 12 of the N.Y. Constitution. The Fourth Amendment protects persons from unreasonable searches and seizures, and states that no warrant shall issue without probable cause. Their claims specifically challenged the record-keeping, search and penalty provisions of the STRL, which: (i) require the owner to maintain copies rental agreements and the rental registry on premises for Shelter Island’s examination, upon request, and preserve them for three years; and (ii) authorize Shelter Island to impose fines and suspend/revoke rental permits for failure to maintain the same. Notably, the STRL provided for a hearing prior to suspension or revocation, but it authorized the fines without a hearing or any process.

The Court noted that, while small civil fines do not rise to the severity of criminal penalties for non-compliance, the STRL raised constitutional concerns. District Courts in other Circuits have held that the automatic imposition of fines for non-compliance (without a hearing) may render a regulatory regime unconstitutional. One such Court held this type of process places the individual in the unacceptable position of having to either (i) submit to inspection or (ii) refuse inspection and hope to successfully defend the scope of inspection afterwards. Here, the Court held:

“[T]he [STRL’s] automatic fines, though certainly not as severe as the threat of arrest and criminal prosecution, could be used as a pretext for harassment. By failing to provide an opportunity for pre-compliance review before the imposition of fines, the [STRL] may violate the Fourth Amendment. But that is not to say that pre-compliance review alone would make the [STRL] constitutional.”

The Court further noted that administrative-search regimes without pre-compliance review may satisfy the Fourth Amendment where the government shows special needs that make the warrant and probable cause requirements impractical, and that the primary purpose is distinguishable from the general interest in controlling crime.

Amendments to STRL

Although the Court dismissed almost all of the plaintiffs’ claims, the survival of the Fourth Amendment claim resulted in Shelter Island amending its STRL in May 2019. In early September 2019, several months after the Court’s decision in Weisenberg, and after amendments to the STRL, the parties stipulated to discontinue the action.

As municipalities seek to regulate, license and monitor short term rentals, particularly given today’s sharing-economy and the explosion of online listing services, Weisenberg provides further insight into how challenges to these laws may fare.

The Ludovico Sculpture Trail (Trail) is located near the Women’s Rights National Historic Park in Seneca Falls, NY.  Its website can be found at  The Trail recently became a centerpiece of a land use dispute with the Town of Seneca Falls (Town).

In Matter of Frank J. Ludovico Sculpture Trail Corp. v Town of Seneca Falls, the Fourth Department annulled a decision of the Town to acquire an easement along the Trail to install a new sewer line because the Town failed to comply with the Eminent Domain Procedure Law (EDPL).  The Town, as lead agency, adopted a negative declaration under the State Environmental Quality Review Act (SEQRA) that, in the Court’s view, failed to take the required “hard look” at the proposed sewer project’s impact on wildlife.  The Court also found that that the Town failed to provide a reasoned elaboration of the basis for its determination that the proposed sewer line project would not have a significant impact on wildlife or surface water.

Prior to issuing its SEQRA determination, the Town was advised by the New York State Department of Environmental Conservation (NYSDEC) that there may be certain endangered, threatened or rare animal and plant species located at the proposed easement site. These included the northern long-eared bat, the Imperial moth, and the northern bog violet.  The NYSDEC  also advised the Town that the Trail may be the location of an inland salt marsh.  The NYSDEC recommended the Town conduct a literature survey to determine if the project site contains habitats that are favorable to these species, and if so, undertake a field study to determine if the species are present at the project site.  If they are present, the NYSDEC instructed the Town that it must consider modifications to the project to minimize impacts on these species.

The Town never conducted the survey. Rather, the Town apparently just assumed the species were present, noted them on the SEQRA environmental assessment form (EAF), and further noted there would be no direct taking of these species or of the Indiana bat, because all of the tree clearing activities would be conducted in the winter months when bats are hibernating in caves. As to the Imperial moth, northern bog violet, or other species that might be located in the salt marsh, the EAF merely listed them and summarily concluded they would suffer no significant impact.  This was not the “hard look” required by SEQRA according to the Court.

The Court also found that the NYSDEC’s recommendation to avoid impacts on surface water was given short shrift by the Town.  In the EAF, the Town noted it planned to reroute the sewer line “to the extent practicable” or use horizontally directional drilling to avoid impacts.  This conflicted with another part of the EAF, where the Town indicated it was going to use horizontally directional drilling “when possible.”   According to the Court, this meant that the Town anticipated that re-routing the sewer line would be impracticable and/or the specialized drilling would be impossible at some point during the project, but failed to address how it planned to avoid adverse impacts if these contingencies arose at the same or different times. As a result, the Court found the Town’s reasonable elaboration to be lacking.

The Court then ruled that the negative declaration was arbitrary and capricious and annulled the Town’s determination to acquire an easement in the Trail.

In Schmidt v. City of Buffalo Planning Bd., 174 A.D.3d 1413 (4th Dept., July 31, 2019), the petitioner, Terrence Robinson, filed suit to prevent the demolition of an architecturally significant apartment complex, claiming that the City Planning Board failed to comply with the State Environmental Quality Review Act (SEQRA) when it adopted a negative declaration of environmental significance on an application to redevelop the site. The appellate court affirmed the lower court’s order and judgment, dismissing Mr. Robinson’s claims for lack of standing.

Buffalo City Hall

In its opinion, the Court reminded that “[t]hose seeking to raise SEQRA challenges must establish both an environmental injury that is in some way different from that of the public at large, and … that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA.” 174 A.D.3d at 1413 (internal citations and quotations omitted). Petitioner, an architecture enthusiast, claimed he would suffer sufficient injury to confer standing upon him because he had a specific interest in visiting and photographing the apartments, and in historic preservation generally. The appellate court rejected petitioner’s argument, writing that “[i]nterest and injury are not synonymous … A general — or even special — nterest in the subject matter is insufficient to confer standing, absent an injury distinct from the public in the particular circumstances of the case. Here, petitioner’s appreciation for historical and architectural sites does not rise to the level of injury different from that of the public at large for standing purposes.” Id.

The injuries Mr. Robinson alleged in support of his standing argument are reminiscent of those successfully advanced by the petitioners in Save the Pine Bush, Inc. v. Common Council of City of Albany, 13 N.Y.3d 297 (2009). There, the individual petitioners were members of an organization dedicated to the use and appreciation of the Albany Pine Bush, an environmentally significant region in Albany, New York. The petitioners sued the City’s Common Council to prevent a hotel development near the Butterfly Hill area of the Pine Bush, a known habitat of the endangered Karner blue butterfly and other protected and endangered species. The New York Court of Appeals ruled that the individual petitioners demonstrated sufficient injury for standing under SEQRA because they use the Pine Bush for recreation, study, and to enjoy the unique habitat there and, therefore, would be harmed in a manner different from the public at large if that ecosystem were disrupted by the proposed development. 13 N.Y.3d at 921-22.

The Court of Appeals decision in Save the Pine Bush, Inc., is not discussed or cited in the Fourth Department’s opinion in Schmidt. Nonetheless, the differing outcomes on the issue of standing beg the question: When does a petitioner’s “interest” in an environmental resource cross the threshold from a mere interest into something sufficient to confer standing? Similar to the petitioners in Save the Pine Bush, whose injury derived from their interest in visiting and studying an environmentally significant area, Mr. Robinson’s alleged injury arose from his interest in visiting and photographing an architecturally significant apartment building. For admirers of great architecture, is the loss of an architecturally significant building not the same as the extinction of an endangered species for a lover of nature?

A copy of the Court’s decision can be accessed on the Fourth Department’s website:

A recent decision from the Appellate Division, Third Department, concerned an unsuccessful challenge to a subdivision approval for five separate community solar projects.   First – a little background information. According to the New York State Energy Research and Development Authority  (NYSERDA) a community solar project, sometimes referred to as a solar garden or shared renewable energy plant, is “an array of solar panels installed in a sunny, offsite location. Anyone in the area can access the clean energy produced by these solar panels and get credits toward their electricity bills.”  NYSERDA reports that the benefits of joining a community solar project include (1) being able to “go solar’ without having to install solar panels on your property, (2) saving money on electric bills, and (3) supporting clean, locally generated power.

The case, Matter of Perkins v Town of Dryden Planning Board, involved the Town of Dryden (Town),  SUN8 PDC LLC and Distributed Sun LLC (collectively SUN8) the owner and operator of the community solar projects, Scott Pinney, the owner of farmland that SUN8 leased for the community solar projects, and Willow Glen Cemetery Association and Sarah Osmeloski, (collectively Petitioners) two neighbors that own land adjacent to the farmland. SUN8 sought to construct five separate community solar projects on the farmland and to subdivide the land into five separate lots, with each project being on a separate lot.

The Town Board granted SUN8 a special use permit and site plan approval and the Planning Board approved the preliminary subdivision plat. Petitioners brought two separate proceedings, seeking to enjoin the issuance of building permits and challenging the Planning Board’s preliminary subdivision plat.  Both of these actions were dismissed in December 2014.

In February 2018, the Planning Board approved two resolutions, one that permitted a common driveway for access to all five lots from Route 13 and the other approved the final subdivision.  Petitioners commenced this action in March 2018, seeking to annul these two resolutions.  Petitioners claimed that the Planning Board lacked jurisdiction under section 602 of the Town’s Zoning Code because it exceeded the four flag lot limitation for common driveways found in that code provision.  Petitioners also claimed that both resolutions were ultra vires and void under Town Law 280-a.

Petitioners then ran into some technical and ultimately fatal issues.  Initially, and erroneously, the notice of petition (but not the petition itself) described the two resolutions being challenged as having been issued by the Town Board, instead of the Planning Board. The trial court permitted Petitioners to amend the notice of petition to correct this. Next, the director of the Planning Department submitted an affidavit indicating that only three of the lots were flag lots, not all five. Petitioners then moved to delete their claims about the number of flag lots served by the common driveway and to add claims that frontage and access requirements were violated by the subdivision. Although the trial court found that respondents were not prejudiced by the proposed amendments, the court denied the request on the grounds the proposed claims lacked merit and dismissed the petition.

The appellate court affirmed.  The Court discussed the rules regarding amendment of pleadings, noting that leave to amend should be freely given unless “the proposed amendment is palpably insufficient or patently devoid of merit.” It then turned to Petitioners’ argument that the trial court committed reversible error when it ruled that Town Law 280-a was not applicable.  The appellate court reviewed Town Law 280-a and determined that it applied to permits for the erection of buildings. Since that section of law did not define “buildings” the Court looked to how the Town’s Zoning Code defined “building.”  That local Zoning Code defined “building” as any structure “where space, greater than 150 square feet in area, is covered or enclosed.” The Court then looked at the definition of “structure” under the local Zoning Code, which was defined  as ‘[a]nything constructed or erected on the ground or with a fixed location on the ground or attached to something having a fixed location on the ground and includes. . . solar panels.”  Thus, while solar panels may qualify as a structure under the Town’s Zoning Code, they did not meet the definition of “building” under that local code as they are not “covered or enclosed.”  Since the solar panels were not “buildings”  the Court determined that Town Law 280-a did not apply to this matter, making the proposed amended claim devoid of any merit. The end result – the appellate court affirmed the dismissal of the proceeding.




By decision dated December 17, 2015, the Town of Southampton Zoning Board of Appeals granted relief from Town Code §330-82 to allow a zero foot road frontage (where 40 feet is required) for two landlocked parcels located at 86 and 138 Old Sag Harbor Road in North Sea to allow for the construction of a single family residence. The parcels are 12,495 sf and 54,042 sf respectively, located in the CR-200 zoning district, are nonconforming as to size and the applicant proposed to merge the parcels to allow for the construction of a single family residence. Both vacant parcels have access to Old Sag Harbor Road over a 50 foot wide easement granted to the property in 1949. However, the easement did not provide the requisite “road frontage” under the Code to build the residence. The application was opposed by the neighboring property owners to the north of the parcels who alleged that the properties (i) had merged and were not single and separate, (ii) even as merged were still not entitled to relief under Town Code §330-115D; and (iii) the application did not pass the variance standards for granting relief. The Zoning Board of Appeals granted the variance request finding that:

“the benefit to the applicant outweighs any perceived detriment to the neighborhood or the community. The detriment to the neighborhood, as articulated by Ms. Nowak and Mr. Lombardo, is in the construction of a dwelling on the premises since it will obstruct their views of the vacant, wooded, premises. However, applicant is not before this Board for relief for a building envelope for the dwelling. Rather, applicant requires relief as the premises does not have any road frontage, and there was evidence presented that in fact, there are several properties in the neighborhood that have received relief from this Board for reduced road frontage, and a review of the tax map confirms several flag lots in the neighborhood. As such, it is likely that the granting of relief will have no discernible impact on the neighborhood. Likewise, this Board notes that it was presented to this Board that the two lots will merge, resulting in a larger (though still nonconforming) lot in this CR-200 zoning district—one that is larger in size than that of Ms. Nowak’s. Therefore, Board finds that there is no detriment to the community here in granting 0 feet road frontage to the premises and that there is a great benefit to the applicant since securing the variance is necessary in order to build on the premises.”

The neighboring property owners brought an Article 78 Proceeding challenging the Zoning Board of Appeals approval entitled, Nowak v. Town of Southampton Zoning Board of Appeals et al., Supreme Court Suffolk County, Index No. 376/2016. By decision dated November 2, 2016, the Honorable Joseph C. Pastoressa, J.S.C. denied the petition and dismissed the proceeding. Petitioner’s primary argument was that respondents were not entitled to a variance because the two lots had merged for zoning purposes and were not entitled to be treated as nonconforming lots under the Code. Specifically, Town Code §330-115D provides that a “nonconforming lot separately owned and not adjoining any lot or land in the same ownership at the effective date of this chapter and not adjoining any lot or land in the same ownership at any time subsequent to such date may be used, or a building or structure may be erected on such lot for use, in accordance with all the other applicable provisions of this chapter, provided that proof of such separate ownership is submitted in the form of an abstract of title showing the changes of title to said lot…” Regardless, the Court found Petitioner’s argument unpersuasive stating, “even if the two lots did merge, the Town Code provides that, if a nonconforming lot “shall thereafter be held in the same ownership as an adjoining parcel, it shall lose its status as a nonconforming lot, except to the extent that the lot created by the merger of the two parcels shall remain nonconforming in the same respect..” Thus, the Court determined that the two parcels, as merged comprised of 66,537 sf, well below the required 200,000 sf in the CR200 zoning district, were still nonconforming and entitled to relief under Town Code §330-115.

Petitioners appealed the determination to the Appellate Division, Second Department in Matter of Ann L. Nowak v. Town of Southampton et al., decided July 31, 2019. The Appellate Division affirmed the Supreme Court’s determination and found that the ZBA’s determination to grant the area variance allowing zero feet of road frontage for the subject properties had a rational basis.

The Long Island Central Pine Barrens Protection Act (“Act”), enacted in 1993, created the Central Pine Barrens  Joint Planning & Policy Commission (“Commission”) which implements the Comprehensive Land Use Plan (“Plan”).  Pursuant to the Act, a five-member Credit Clearinghouse Board (“Clearinghouse”) oversees a transfer of development rights program designed to maintain value in lands by providing for use and allocation of pine barrens credits (“PBC”).

A PBC represents the development potential that can be transferred from a privately-owned parcel of property within the core preservation area of the Central Pine Barrens (“Core”), or other sensitive area identified in the Plan, to a parcel in designated areas outside the Core. Landowners agreeing to receive such transfers may be eligible for additional density or increased sanity flow.

The Clearinghouse issues Letters of Interpretation (“LOI”) based on an application for PBCs.  The LOI determines the number of PBCs a parcel of land generates based on yield formulas and existing uses on a site.  After the LOI is issued, a landowner may request a PBC Certificate which is a transferable document for sale or use to increase density or sanitary flow.  After filing  a conservation easement in favor of the Commission, which sterilizes the property from future development, a PBC Certificate is issued to the landowner.  The PBC Certificate allocates the number of PBCs (development rights) severed from the parcel and can be sold on the open market in the range of $75,000.00 to $100,000.00 per credit.

Recently, the methodology of how PBC allocations were arrived at was the subject of an Article 78 litigation.  In Equine Facilities LLC, v Central Pine Barrens Joint Planning & Policy Commission et al., a horse farm that had received several LOIs in the past challenged the density methodology of the Clearinghouse and the Commission.  In 1997, the prior owner of the 34-acre horse farm located in the Core area of the Town of Brookhaven zoned A Residence with a Horse Farm Residence overlay sought and received a LOI allocating 4.48 PBCs.  The number of PBCs was determined by utilizing a yield factor of 0.16 PBCs per acre with one PBC eliminate because of an existing residence on site.  The Horse Farm Residence zoning district provides 10 acre per residence, while the A Residence only required a minimum lot size of 30,000 square feet.  The Clearinghouse’s LOI determination was not appealed to the Commission.  A new owner purchased the subject property in 2004.

In 2012, the Plan was amended and reduced the yield factor to 0.10 PBC per acre for nonresidential properties.  In 2012, the horse farm applied for a LOI, which because of the lower yield factor and other property improvements, resulted in a negative PBC allocation that the Clearinghouse assigned a value of zero.  This determination was also not appealed to the Commission.

In 2016, the horse farm owner applied for yet another LOI.  The Clearinghouse again considered the PBC yield to be zero, however, the Petitioner argued it was entitled to 49.68 PBC because the parcel could be developed with multiple single family homes.  The Clearinghouse disagreed, based on the theory that lot yield was based on permitted lot size (10-acres) not permitted uses (single-family residences).  The Petitioner appealed to the Commission arguing that the horse farm was entitled to 49.68 PBCs if the property was divided into multiple single family lots or alternatively, 41.1 PBCs based on a yield factor of 1.2 PBC per acre based on the underlying zoning of A Residence District.  The Commission reined in the Petitioner and granted the horse farm 4.48 PBCs, because that had been previously allocated in 1997 and reliance upon such a prior determination was considered an important factor.

Although the Supreme Court found the Clearinghouse determination of zero PBC’s to be technically accurate, it considered the Commissions allowance of 4.48 PBC’s to be rationally based and dismissed the Article 78.   Thus, unless found to be arbitrary and capricious, LOI determinations by the Commission will withstand legal challenges, and it this particular case, it might be best not to look the proverbial gift horse in the mouth.